Suppose you are a U.S. company that manufactures a product that is partially or completely manufactured by a Chinese company. And suppose that your company is sued in a United States District Court and the plaintiffs (or you) believe that discovery from the Chinese manufacturer is relevant to the lawsuit. Can you require the non-party Chinese company to provide this needed evidence, or are you simply out of luck? This article outlines some of the issues and difficulties involved when seeking discovery from a non-party company based in China and offers a practical suggestion for enhancing your ability to do so in future cases.
There are two primary means for obtaining discovery from foreign entities that are not parties to a U.S. lawsuit: the Federal Rules of Civil Procedure (FRCP) and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention). When the court has personal jurisdiction over the foreign company, the FRCP should be the primary means by which you seek discovery. For example, FRCP 45 permits courts to command non-parties to produce documents and may enable discovery of a foreign non-party’s documents based on the foreign non-party’s relationship to a party as within the subpoena power of the court. However, where the foreign entity is not subject to the jurisdiction of U.S. courts, determining whether the Hague Convention is a viable alternative will depend very much on the country in which the foreign entity is located. Unfortunately, the Hague Convention has not proven to be a reliable method of obtaining discovery from within China.